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Prosecutors, Defenders Back Pretrial Release Bill

ANNAPOLIS, Md. — Maryland prosecutors and public defenders are supporting legislation that would establish a formula, based on factors like criminal history, to decide whether people charged with a crime should be released before trial.

Besides helping low-income, low-risk defendants avoid unnecessary pretrial lockup, it would help identify people likely to reoffend, said Cherise Burdeen, director of the Pretrial Justice Institute. She testified Wednesday before the Senate Judicial Proceedings Committee.

The bill sets up a system that resembles the one used in Montgomery County. Sen. Brian Frosh, a Montgomery County Democrat, introduced it in the Senate. Del. Kathleen Dumais is sponsoring a parallel bill in the House.

Burdeen said roughly 10 percent of the country uses this kind of process. That includes the federal court system, seven entire states, and many individual counties.

Under the bill, a computer program would calculate a risk score for the person arrested. Those who scored low could be released immediately. The rest would see a judge at the earliest opportunity.

Currently in Maryland, court commissioners make these initial decisions after meeting the defendants.

The Court of Appeals has ruled that Maryland must start providing public defenders at the meetings where commissioners set bail. The court’s decision could still be reversed. But if it stands, the state’s attorney costs could rise by $30 million.

Several lawmakers have introduced bills to avoid this expense. Some want to eliminate the commissioners’ role, but defense attorneys say this would force harmless people to sit in jail longer, waiting to see a judge.

Frosh’s bill is the only proposal endorsed by both the Maryland Office of the Public Defender and the Maryland State’s Attorneys Association.

When trying to predict whether a defendant will show up for court hearings and stay out of trouble, the best indicators are prior convictions and failures to appear in court, according to a study by the Laura and John Arnold Foundation. Factors like residence and employment are not nearly as reliable, the study says.

Moreover, court workers can unintentionally let factors like race and socioeconomic status affect their assessments, Burdeen said. She told the Senate committee that using a formula would eliminate the possibility of discrimination at this stage.

The Arnold Foundation recently field-tested a pretrial risk assessment tool in Kentucky, similar to the one that Maryland may adopt. Its study showed a fairly high accuracy rate. Among those classified as “low-risk” and later released from jail, 10 percent missed court hearings or committed new crimes. Thirty-seven percent of “high-risk” defendants did.

Frosh’s bill would involve hiring a new department of pretrial workers. Besides assessing risks, they would monitor defendants before their trials. The bill aims to have the system running by Oct. 1, but Frosh said he doubted the state could actually meet this goal.

Also on Wednesday, the committee examined a bill introduced by Sen. President Thomas V. Mike Miller Jr. Like Frosh’s bill, it would evaluate new arrestees based on a formula, but it would assign cash bonds.

Timothy Maloney, a defense attorney and former House Delegate, said it would be an effective stopgap measure before Frosh’s proposal could fully take hold.